Citation Nr: 22015245 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-50 051A DATE: March 16, 2022 ORDER Entitlement to veteran readiness and employment (VR&E) benefits other than employment services, to include pursuit of a Master of Science degree in Intelligence and Counterintelligence Studies, pursuant to 38 U.S.C. Chapter 31, Title 38 of the United States Code, is denied. FINDING OF FACT The Veteran is currently employable with a Bachelor of Arts degree; she has overcome any impairment of employment to which her service-connected disabilities have substantially contributed. CONCLUSION OF LAW The criteria for entitlement to VR&E benefits other than employment services, to include pursuit of a Master of Science degree, pursuant to Chapter 31, are not met. 38 U.S.C. §§ 3100, 3101, 3102; 38 C.F.R. §§ 21.40, 21.50, 21.51, 21.52, 21.70, 21.72, 21.94. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1975 to August 1976. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a June 5, 2017, administrative decision issued by a Department of Veterans Affairs (VA) Vocational Rehabilitation Counselor (VRC). When the Veteran filed her substantive appeal to the Board, she requested the opportunity to testify at a Board hearing. In a February 2022 written statement, the Veteran indicated that she wanted to withdraw her hearing request. The Veteran's request for a Board hearing is deemed withdrawn. Additionally, the Board notes that in a July 27, 2021, notice letter, the VRC informed the Veteran that her case was being closed because she had achieved Maximum Rehabilitation Gain (MRG). See 38 U.S.C. §§ 3101, 3107; 38 C.F.R. § 21.283. In October 2021, the Veteran appealed that decision to the Board via a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement). She selected the Board Hearing Lane option within the Appeals Modernization Act (AMA) appeal review system. The issue of whether the Veteran's VR&E case was properly closed will be addressed in a future AMA Board decision. Entitlement to VR&E Benefits The Veteran is seeking VR&E benefits other than employment services, to include pursuit of a Master of Science degree in Intelligence and Counterintelligence Studies, pursuant to 38 U.S.C. Chapter 31, Title 38 of the United States Code. Background The Veteran applied for VR&E services in October 2013 and was found entitled to benefits in January 2014 based on having a serious employment handicap. She was initially placed on an extended evaluation in order ascertain the feasibility of her vocational goal. In July 2015, an Individualized Written Rehabilitation Plan (IWRP) was implemented with the vocational goal of obtaining and maintain suitable employment in the field of "Intelligence Analyst" or a related occupation, and the Veteran began her pursuit of a Bachelor of Arts degree in Intelligence Studies at American Public University (APU). On May 22, 2017, while the Veteran was still pursuing her Bachelor's degree, she submitted a request to the VRC asking for approval to pursue a Master's degree in Intelligence and Counterintelligence. On June 5, 2017, the VRC issued an administrative decision informing the Veteran that her request to pursue a Master's degree was denied. The Veteran completed her Bachelor's degree in Cybersecurity from APU in July 2018. She subsequently requested an administrative review of her case. On July 31, 2017, a VR&E Officer (VREO) issued an administrative decision upholding the decision to deny additional education. In August 2018, the Veteran submitted a notice of disagreement (NOD) contesting the VRC's denial of her claim for VR&E benefits. The VRC (with concurrence by the VREO) issued a statement of the case (SOC) in September 2018. The current appeal ensued. See November 2018 VA Form 9. In a November 2019 Memorandum, the VRC agreed to an extension of VR&E benefits to enable the Veteran to an additional certification in order to be "job ready." The program at My Computer Career included training in Microsoft Security, Microsoft Server, Microsoft Networking, CompTIA A+, CompTIA Server+, CompTIA Network+, CompTIA Security+, and Linux Essentials. See November 2019 VRC Memorandum; see also April 22, 2020, administrative decision letter granting an extension of benefits. The Veteran participated in the aforementioned computer training program from December 2019 until October 2020. The Veteran then requested additional training at My Computer Career. This request was denied because the VRC found that the Veteran was employable with her current education and skills. The VRC indicated that the next step was for the Veteran to participate in the job search program. See May 13, 2021, administrative decision letter denying additional training. The Veteran's case was placed in interrupted status and then eventually closed. See June 24, 2021, administrative decision letter; July 27, 2021, administrative decision letter. Despite the subsequent entitlement actions taken by the VRC in this case, the Board observes that the issue on appeal is narrowly construed as "entitlement to VR&E benefits other than employment services, to include pursuit of a Master of Science degree in Counterintelligence Studies, pursuant to 38 U.S.C. Chapter 31, Title 38 of the United States Code." Legal Criteria The purpose of training and rehabilitation benefits provided under Chapter 31 is to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. 38 U.S.C. § 3100; 38 C.F.R. §§ 21.1, 21.70. Generally, a veteran seeking Chapter 31 vocational rehabilitation training will initially be assigned a specific case status of "applicant" and if he or she attends the appointment for an initial evaluation progresses to "evaluation and planning status." See 38 C.F.R. § 21.180. During evaluation and planning status it is determined whether the veteran has an employment handicap and whether achievement of a vocational goal is feasible, and a plan is developed. See 38 C.F.R. § 21.184. When a decision concerning achievement of a vocational goal cannot be made during the initial evaluation the veteran may be assigned to "extended evaluation status" and extended evaluation status is continued whenever a veteran is receiving rehabilitation services prescribed in the individualized extended evaluation plan (IEEP). 38 C.F.R. § 21.188. If a veteran completes "evaluation and planning status" he or she moves to "rehabilitation to the point of employability" status, from there to "employment services" status, and from there to "rehabilitated" status. See 38 C.F.R. §§ 21.190, 21.194, 21.196. Rehabilitation to the point of employability may include the services needed to train a Veteran to the level generally recognized as necessary for entry into employment in a suitable occupational objective. Where a particular degree, diploma, or certificate is generally necessary for entry into an occupation, he or she shall be trained to that level. 38 C.F.R. § 21.72(a)(2). VA will assist a veteran with a serious employment handicap to train to a higher level than is usually required to qualify in a particular occupation, when one of the following conditions exist: (i) The veteran is preparing for a type of work in which he or she will be at a definite disadvantage in competing with nondisabled persons for jobs or business, and the additional training will help to offset the competitive disadvantage; (ii) The number of feasible occupations are restricted, and additional training will enhance the veteran's employability in one of those occupations; (iii) The number of employment opportunities within feasible occupations are restricted. 38 C.F.R. § 21.72(b)(2). The estimated duration of the period of training required to complete an original or amended IWRP may be extended when necessary. Authorization of an extension is the responsibility of the VRC. Any extension which will result in use of more than 48 months of entitlement must meet conditions described in § 21.78. 38 C.F.R. § 21.72(c)(2). The duration of a rehabilitation program for a veteran with a serious employment handicap may be extended beyond 48 months under Chapter 31 for the number of months necessary to complete a rehabilitation program under the following conditions: Following rehabilitation to the point of employability: (i) The veteran has been unable to secure employment in the occupation for which training has been provided despite intensive efforts on the part of the Department of Veterans Affairs and the veteran, and a period of retraining or additional training is needed; (ii) The skills which the veteran developed in training for an occupation in which he or she was employed are no longer adequate to maintain employment in that field and a period of retraining is needed; (iii) The veteran's service-connected disability has worsened to the point that he or she is unable to perform the duties of the occupation for which the veteran has been trained, and a period of training in the same or different field is required; and (iv) The occupation in which the veteran previously completed training is found to be unsuitable due to the veteran's abilities and employment handicap. See 38 C.F.R. § 21.78(c)(4). Analysis The Board has carefully reviewed the evidence of record and finds that additional VR&E benefits for the purpose of pursuing a Master's degree in Intelligence and Counterintelligence Studies are not warranted. In his June 2017 administrative decision, the VRC noted that the Veteran's request to pursue a Master's degree was being denied pursuant to 38 C.F.R. § 21.72. Noting that the Veteran's Chapter 31 program was designed to (1) evaluate and improve her ability to undertake training; and (2) train her to the level generally recognized as necessary for entry into employment in a suitable occupational objective. The VRC indicated that the Veteran's Bachelor's degree should be sufficient to allow her to achieve her vocational goal and that a review of the labor market showed that only 13 percent of those employed as an Intelligence Analyst in California had a Master's degree or higher. Additionally, the VRC noted that the Veteran had used up her 48 months of entitlement and that and extension had already been requested to allow her to complete her current Bachelor's degree program. In the subsequent July 2017 administrative review decision, the VREO reviewed the Veteran's statements identifying her interest in continuing her education. The VRC noted that consideration was given to the Veteran's occupational interest in "becoming competitive" for agencies like the Department of Defense, Department of Homeland Security, Federal Bureau of Investigation, etc. The VREO also noted that a review of the local labor market revealed that the average education level for an Intelligence Analyst was a high school diploma and that qualification for many Federal positions in the field of intelligence did not require a college degree. The VREO stated, "Your VRC [has] determined that the vocational goal of Intelligence Analyst is appropriate based on your service-connected disabilities. You selected this field of work and have demonstrated your capability of meeting the demands of this occupation based on your academic progress." The VREO further noted that the suitability of the Veteran's vocational goal based on employment that does not aggravate the Veteran's service-connected disabilities had been considered, along with her utilization of sufficient training entitlement, her aptitudes, her interests, her abilities, and her employment outlook. The VREO noted that all of these requirements had been accommodated in her proposed vocational plan. Lastly, the VREO noted that the Veteran would be afforded employment services to assist her in finding employment opportunities that would utilize her Bachelor's degree. The VREO ultimately upheld the VRC's June 2017 denial regarding the Veteran's request to pursue a Master's degree. In the September 2018 SOC, the VRC (with concurrence from the VREO) noted that the Veteran was nearing the completion of her Bachelor's degree (which she eventually earned in April 2019) and that "a Bachelor's degree is the typical education required of the vocational goal of an Intelligence Analyst." The VRC opined that additional education was not required to pursue the Veteran's vocational goal and that she would be employment once she completed her Bachelor's degree. In support of this opinion, the VRC stated the following: A review of the labor market information provided by you shows that a Bachelor's Degree is the typical education required for the vocational goal of Intelligence Analyst as 41 percent of those employed in this occupation. In addition, the different job announcements [that you submitted] also show that a Bachelor's Degree is needed for this job. Some of the [job] announcements state "Bachelor's or Master's Degree" or a "Master's Degree preferred," but you will be employable for this goal with a Bachelor's Degree as you have been trained "to the level generally recognized as necessary for entry into employment in a suitable occupational objective." Since you will attain "employability" once you complete your Bachelor's Degree, additional education for attainment of the goal of a Master's Degree is not required for you to be employed in a suitable goal. The VRC indicated that the Veteran would be afforded a job services program rather than additional education. Considering the evidence above, as well as all other evidence of record not specifically discussed, the Board concludes that VR&E benefits, other than employment services, are not warranted in this case. As outlined above, the VRC found that the Veteran's existing education, specifically a Bachelor's degree, was sufficient for the Veteran to obtain and maintain employment with her interests, aptitudes, and abilities. 38 C.F.R. § 21.70. The VRC is an expert in the field, competent to attest to the Veteran's employment prospects in the current environment and there is no evidence that the VRC is not credible; as such, the Board assigns this opinion great probative weight. Specifically, the VRC evaluated the Veteran and found her Bachelor's degree enabled her to obtain and maintain suitable employment as an Intelligence Analyst. Furthermore, both the VRC and VREO conducted job market analyses and found that a high school diploma was the average education level for an Intelligence Analyst and that "many Federal position in the field of intelligence did not require a college degree." Lastly, the VREO indicated that that labor market research showed that only 41 percent of those employed in Intelligence Analyst positions had a Master's degree. As an alternative option, the VRC (with concurrence by the VREO) offered the Veteran employment services to assist her in finding an Intelligence Analyst job. However, there is no indication in the record that the Veteran has utilized the employment services that were offered to her or that she attempted but was unsuccessful in pursuing employment that would utilize the Bachelor's degree that she earned in July 2018. The Board acknowledges the Veteran's desire to obtain a Master's degree in Intelligence and Counterintelligence Studies. Undoubtedly, having an advanced degree would make her more marketable for some jobs in her field. However, the Board finds it necessary to emphasize that the purpose of Chapter 31 VR&E services is not to provide the Veteran with whatever level of education or career training she chooses. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment. Here, the Veteran was found by the VRC and VREO to have developed knowledge, skills, and abilities to overcome her serious employment handicap and to obtain and maintain suitable employment. The Board finds no statutory or regulatory basis upon which to overturn the decisions made by the VRC and VREO in this case or to grant an extension of entitlement to obtain a Master's degree. See 38 C.F.R. §§ 21.72, 21.78. The Board concludes that the evidence of record is against the Veteran's claim of entitlement to VR&E Chapter 31 benefits. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that there is not an approximate balance of positive and negative evidence regarding the claim; thus, the benefit of the doubt doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.